IN THE HIGH COURT OF SINDH, AT KARACHI
Constitutional Petition No.S-613 of 2012
Present:
Mr. Justice Abdul Maalik Gaddi
Muhammad Naseem ………………...….………………………….. Petitioner
Versus
Muhammad Imran and others. ………………………………….Respondents
Date of hearing : 19.02.2014
Date of order : 19.02.2014
Mr. Samsam Ali Raza, advocate for the Petitioner.
Mr. Azizuddin Qureshi, advocate for the respondent No.1.
Petitioner is the attorney of respondent No.2.
None present for the respondents No.3 and 4.
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O R D E R
Abdul Maalik Gaddi, J The petitioner is aggrieved by the judgment dated 27.04.2012 passed by the learned Vth Additional District Judge, Karachi East, whereby he dismissed F.R.A. No.259/2011 filed by the petitioner against the order dated 29.10.2011 passed by the learned IVth Rent Controller, Karachi East, allowing the ejectment application filed by respondent No.1 and ordering ejectment of the petitioner from the demised premises.
2. Brief facts of the case relevant for the purpose of disposing of this petition are that the respondent No.1 is the owner/landlord of the premises in possession of the appellant. It is the case of the respondent No.1 that he inducted respondent No.2 namely Irshad Ahmed Khan as a tenant in the year 2000 at the monthly rent of Rs.550/- per month excluding the electricity, gas and water charges, payable by the tenant directly to the concerned department. It is pleaded by respondent No.1 that the tenant has not paid rent to him with effect from January 2006 till filing of ejectment application. It is also pleaded that respondent No.2 (Irshad Ahmed Khan) without his permission sub-letted the demised premises to the appellant as such he has committed gross violation of law. It is further pleaded by the respondent No.1 that the premises viz. Room No.16, constructed on plot No.C-545/C-546, Block-2, Commercial area, Tariq Road, P.E.C.H.S, Karachi, is in possession of appellant is required to him for his personal bonafide need as he has three children and having no any other accommodation except the demised premises and at present he is residing with his mother. When respondent No.1 requested the appellant to vacate the premises on the aforesaid grounds he refused to vacate the premises, hence respondent No.1 filed the ejectment application.
3. The appellant (Muhammad Naseem) himself and as attorney of Irshad Ahmed Khan has filed his written statement denying the averments made in the ejectment application.
4. On the basis of pleadings of the parties the following issues were framed by the trial Court:
1- Whether the opponent has sublet the premises in question to opponent No.2?
2- Whether the opponent No.1 is defaulter in payment of monthly rent since July, 2006 upto date?
3- Whether the premises in question is required for the bonafide personal need, which includes personal need of his family?
4- What should the order be?
5. After hearing the learned counsel for the parties, the learned IVth Rent Controller, Karachi East, allowed the ejectment application vide order dated 29.10.2011 only on the ground of sub-letting and on the ground of personal bonafide need of the respondent No.1, whereas, ground of default in payment of rent was not proved.
6. The petitioner challenged the ejectment order through First Rent Appeal No.259/2011, which was dismissed by the learned Vth Additional District Judge, Karachi East, vide impugned judgment dated 27.04.2012.
7. It is contended by the learned counsel for the petitioner that the impugned orders of two Courts below are against the facts and law and they have not appreciated the evidence on record. He has further submitted that Irshad Ahmed Khan has not sub-letted the premises to Muhammad Naseem and according to him Irshad Ahmed Khan is temporarily residing at Sharjah (U.A.E.) in connection with his job and whenever he comes to Pakistan lives in the said tenement. He has further submitted that the premises in question is not required to respondent No.1 for his personal need, but ejectment application has been filed with malafide intention to get vacation of the premises in possession of appellant. In support of his argument he has relied upon the case reported in Rais Illahi Bux and another vs. Inamullah (NLR 1981 AC 315).
8. On the other hand, learned counsel for the respondent No.1 fully supported the impugned judgments/orders of two Courts below and stated that since there are concurrent findings of two Courts below, it has not been shown that any findings are against the evidence on record. He has further submitted that the trial Court as well as Appellate Court have given cogent reasons in support of their findings and impugned judgments/orders do not call for any interference from this Court and prayed that this petition may be dismissed. In support of his contention, he has relied upon the following case law:-
1. Iqbal Book Depot and others vs. Khatif Ahmed and 6 others (2001 SCMR 1197)
2. Mst. Jamila vs. Muhammad Iqbal and 2 others (2013 MLD 52)
3. Muhammad Arshad vs. Syed Ali Hussain Rizvi and 2 others (2013 CLC 1129)
4. Mrs. Ghulam Fatima vs. Shaikh Muhammad Yousuf and another (2013 MLD 1233)
9. I have heard the learned counsel for the parties, perused the record with their able assistance.
10. Respondent No.1 has claimed that Irshad Ahmed Khan (respondent No.2) has sub-letted the premises in question to Muhammad Naseem (Appellant) without his permission and consent, whereas, the appellant has denied the said allegation. According to the appellant he is son-in-law of Irshad Ahmed Khan (respondent No.2) who is tenant of the premises in question but left Pakistan for Sharjah (U.A.E.) in connection with his service and whenever he comes to Pakistan, used to reside in the said premises. However, the appellant being son-in-law of Irshad Ahmed Khan is living there along with his wife and children. The appellant has not been able to prove by producing any documentary evidence that Irshad Ahmed Khan (Respondent No. 2) is his father-in-law and he is in Sharjah (U.A.E.) in connection with his service, so also he has ever resided in the premises in question on coming to Pakistan. On the contrary, he replied in his cross-examination, as under:
“It is correct that the address of the opponent No. 1 has been shown in General Power of Attorney as Exht. O/2 as 31/2 Abdul Qalam Azad Road, Amir Colony-2, Karachi. It is correct that my residential address has been shown in the said general power of attorney as House No. C/545, Gali/Mohalla, Block-2, PECHS, Tariq Road, Karachi.”
11. Admittedly, General Power of Attorney executed by Irshad Ahmed Khan in favour of Muhammad Naseem in the year 2006, whereas as per statement of appellant, respondent No. 2 Irshad Ahmed Khan was inducted in the tenement in question in the year 1973 by previous landlady Mst. Shehla Khatoon, therefore, the admitted address of both Muhammad Naseem and Irshad Ahmed in General Power of Attorney falsify the plea taken by the appellant that respondent No. 2 whenever comes to Pakistan resides with appellant in the premises in question, if it is so then why different addresses of appellant and respondent No. 2 are shown in the General Power of Attorney.
12. From the perusal of material available on record, it appears that actual tenant, namely, Irshad Ahmed Khan to whom the premises was let out is residing in Sharaj (U.A.E.) and Irshad Ahmed Khan has not been examined in this case to show that he has not sub-letted the premises to appellant, prima facie shows that learned Rent Controller on the basis of material has rightly concluded that Irshad Ahmed Khan has sub-letted the premises to appellant and the appellant is residing in the premises without any legal justification. The case law cited by the learned counsel for the appellant has been considered but did not find applicable to the facts of present case.
13. Now coming to the ground of personal bonafide requirement of the premises for the use of the respondent No. 1 and his children. In the ejectment application, it was stated that premises in question is required in good faith for respondent No. 1 and his children on the ground that they are residing in his mother’s house. Respondent No. 1 Muhammad Imran has filed his own affidavit-in-evidence mentioning therein that the premises in possession of appellant is required to him for his bonafide use. This witness has been cross-examined by the petitioner at length but this witness has not shaken in cross-examination. No circumstances are available on record to show that the desire of landlord to use his own property for his children was tainted with malice or any evil design. The statement of landlord Muhammad Imran on oath has not been seriously challenged and same being consistent with the case pleaded by him must have been accepted on its face value and giving due weight. In this case conclusion drawn by Rent Controller to the effect that landlord’s need was bonafide, could not be dislodged in the absence of any strong evidence to rebut the presumption of truth in the statement of landlord.
14. In my view, the landlord has the absolute right to acquire and deal with the property in the manner best suited to him and tenant has no right to disentitle the landlord of his valuable rights to acquire, deal and possess his property, which right was guaranteed by Article 23 of the Constitution of Islamic Republic of Pakistan, 1973, therefore, the findings of the Rent Controller, which has been affirmed by Appellate Court on the point of personal bonafide need appears to be correct and in accordance with law.
15. For the foregoing reasons, I am of the considered opinion that it is not a fit case for interference by this Court in exercise of its constitutional jurisdiction, with the result that this petition stands dismissed alongwith listed application, however, the petitioner is allowed sixty (60) days’ time from today to vacate the premises in question and handover vacant possession thereof to the respondent No.1.
16. This petition was dismissed today vide short order in open Court and these are the detailed reasons for the same.
J U D G E